Nov. 5 2014 11:28 AM

Officer-misconduct complaints are on the rise, but it's not clear why

PoliceComplaints
Illustration by Lindsey Voltoline

After about a dozen San Diego police officers held Demetrice Sightler at gunpoint for 10 minutes on his apartment balcony in City Heights, they realized they had the wrong man. In a cell-phone video of the Sept. 9 incident posted on the Internet, Sightler is clearly infuriated that officers armed with semi-automatic rifles descended on his home with only a vague description of a gun-wielding black man.

With at least one red dot from a laser scope trained on his chest, Sightler kept his hands in the air as he repeatedly told officers they were looking for Apartment 5—the home of a known pimp in the area, according to Sightler, and an address police had visited just three weeks prior. A call log obtained by CityBeat showed that police had been directed to Apartment 5 at 3:40 p.m. on Sept. 9. 

Officers eventually determined that Sightler wasn't their suspect, but not before traumatizing the 32-year-old African-American man. Convinced that such a scene would likely never happen in a white middleclass neighborhood, he went to the Mid-City Division police station the next day to file a complaint. 

However, Sightler said, he ended up leaving without lodging the complaint after the officer taking his statement, Sgt. Benjamin McCurry, tried to talk him out of including an allegation of racial profiling. Instead, Sightler found the number for Internal Affairs and filed his complaint directly with the 17-person branch of the police department that investigates officer misconduct.

The number of such misconduct complaints against the San Diego Police Department has skyrocketed to 177 in 2013, up from 73 in 2009, according to police documents.

It's unclear whether these numbers refer only to the police department's most serious cases—"category one" allegations, such as excessive force, improper arrest and racial discrimination—or if they include "category two" allegations, such as improper procedure and lack of courtesy. 

Since CityBeat first received the documents in August, the police department has repeatedly dragged its feet on answering questions about the total number of misconduct complaints and even declined to answer certain basic questions, such as whether the dates on the documents refer to calendar or fiscal years.

"The San Diego Police Department has been and continues to be very proactive when it comes to encouraging the public to report any concerns they may have regarding service or the actions of department personnel," spokesperson Kevin Mayer said in an email.

That written statement followed multiple requests from CityBeat for interviews with members of the police department, including Internal Affairs personnel. The department has stonewalled all requests to talk to officers in person or over the phone.

A significant increase in police-misconduct complaints "warrants additional scrutiny," said Brian Buchner, president of the National Association for Civilian Oversight of Law Enforcement. "Any time you start to see any increase or decrease, that's an indicator that you need to look more deeply into what's happening."

However, an increase in complaints doesn't necessarily equal an increase in actual misconduct, he added. "The difficult thing about the number of complaints is that we're not quite sure exactly what that means. There's a number of theories about why complaints go up or down over time." 

Mayer did not say why the number of complaints has risen so steeply so recently.

The most optimistic theory is that citizens have become more aware of the process and, as a result, report misconduct at a higher rate. In San Diego, such an increased awareness may have resulted from the spate of high-profile misconduct cases publicized in the news media that have plagued the department recently. 

Most notably, former police officer Anthony Arevalos was convicted in 2012 of sexual battery while on duty after being cleared by Internal Affairs investigators of misconduct. As a result of that and other police misconduct cases, the department has recently come under the scrutiny of the U.S. Department of Justice, as well as federal criminal investigators.

In neighborhoods with higher percentages of African-Americans, such as City Heights and Encanto, people have become more informed about how to respond to police misconduct, said Lei-Chala Wilson, a former public defender and president of the local chapter of the National Association for the Advancement of Colored People.

"I think people are more aware of what you're supposed to do," she said. "I just tell people, if you've got a complaint, you've got to file it."

However, that doesn't mean there still isn't significant fear in certain communities of coming forward with a police-misconduct complaint.  

"A lot of the people involved, who saw what happened, they don't want anything to do with the law enforcement," Sightler said. "They told me, 'Don't tell them where I live.' Even the guy who shot the video said, 'Don't include my name.'"

Individuals, as well as third parties, can file misconduct complaints against a police officer over the phone, via email or in person. Complaints can be filed through the Mayor's office, with a member of the City Council, with the chief of police or directly with Internal Affairs.

After Sightler decided to go with the latter, two Internal Affairs officers came to his home to take his complaint. Before the meeting, he talked to a civil-rights attorney who helped him nail down his specific allegations, which included excessive use of force, improper procedure and racial profiling.

Before the official interview started, the Internal Affairs officers repeatedly tried to convince Sightler to drop the allegation of racial profiling. It was reasonable to detain him at gunpoint, they said, because officers believed a woman was being threatened with a gun in his apartment complex by a black male who roughly fit his description.

"I just wanted to read you the definition so that you can understand the difference between racial profiling and having a specific target, meaning this residence or this building," Internal Affairs officer Jose Chavez said during the interview, which Sightler recorded and shared with CityBeat.

Demetrice Sightler
Photo by Joshua Emerson Smith 

In the interview, Sightler insisted that, in his opinion, the police officers' actions amounted to racial discrimination. "I could have been killed out there because they were wrong, because they didn't know who they were looking for," he said. "They didn't have any description beyond a black dude. See what I'm saying?"

Rather than just take down Sightler's complaint, Chavez pushed the point further, arguing the officers didn't have time to do any additional investigation.

"We're not going to sit behind a computer before we come here and try to get all the facts down," he said. "We want to get here because there's a potential high threat that someone's going to be hurt."

It's unclear if this sort of conversation takes place on a regular basis with complainants during Internal Affairs investigations. However, spokesperson Mayer said that trying to mollify concerned citizens is acceptable behavior.

"Often times, explaining why certain actions were taken often resolves the complaint," he said in an email.

The complaint-intake process should primarily focus on the facts of a case, Buchner said. "A supervisor or Internal Affairs investigator should never attempt to dissuade someone from filing a complaint or encourage them to materially change the allegations or nature of the complaint."

"I think it's difficult for police officers to investigate their colleagues," he added. "There's all kinds of inherent conflicts of interest."

What Sightler didn't know at the time was that individuals can also file complaints through the city's Citizens' Review Board on Police Practices (CRB). The review board is authorized to document verbal and written complaints and forward them on to Internal Affairs.

The 23-person board scrutinizes the Internal Affairs process by reviewing misconduct cases that include category-one allegations. While the board can't subpoena officers to testify, as is the case in some cities, members get full access to Internal Affairs investigations. If the board disagrees with Internal Affairs findings, there are discussions, and cases can be appealed to the Mayor's office.

Since 2009, a little more than 2 percent of category-one allegations of misconduct have been sustained, resulting in an officer being disciplined, according to CRB data. Fiscal year 2014 saw the peak with 4 percent, or seven instances, of category-one allegations sustained out of 162 allegations. During the past six years, more than 80 percent of these complaints have been for excessive use of force or improper arrest.

CRB has also seen a dramatic increase recently in the number of cases it reviews. In fiscal year 2014, the board reviewed 118 cases, a more than three-fold increase from 2009, when it reviewed only 32 cases.

While CRB data collection has been inconsistent, the trend might be more of a dip than a spike. In 2001, CRB's oldest annual report available on the city's website, the board reviewed a comparable 133 cases, including 290 category-one allegations (cases often include multiple allegations). Those numbers increased slightly in 2002, but then started declining dramatically until around 2012. 

At the same time, around 2010, the review board started holding its public meetings at different locations around the city, said Yuki Marsden, CRB board president.

"I would like to think there's been a lot more outreach by the police board," she said. "We now move our meetings around to the various neighborhoods, and we advertise that we're doing that. But we need to do more outreach still."

There are a number of other improvements that could be made to the oversight process, she added. For example, the review board should be able to look at a random sampling of category-two allegations, to which currently only Internal Affairs officers have access.

While such allegations are considered less serious, Internal Affairs officers have discretion when assigning verbal and written complaints with official allegations. Where an officer might see a category-two allegation, such as lack of courtesy, a member of the review board might see a category-one allegation, such as discrimination.

"We write it all up, and we send it over to Internal Affairs, and they make the final call as to whether it's a type-one or type-two," Marsden said. "I would like to propose to the police department that we be able to audit the type-twos."

There's also been concern about CRB's role in disciplining officers. The board reviews disciplinary action, but only after the police department has meted out punishment. 

"It comes back to us, and we do look at it, but we have not taken the step of commenting on whether we agree or disagree," Marsden said. "And by the time it hits us, discipline has already been administered, so we can't affect what has happened."

After having been dormant for several years, a practice known as "red flagging" has been revived. It's used to send a message that the review board believes an officer needs particularly tough discipline. Recently, the board flagged a case, but police officials admitted in a CRB meeting last week to ignoring the protocol.

If it seems like the CRB is a work in process, that's because it is. Putting in up to 40 hours a month, review-board members are perhaps the hardest working of all volunteers on the city's mayoral-appointed boards and commissions. But their support from city staff has been limited.

In 2010, Danell Scarborough, executive director of the San Diego Human Relations Commission, was also assigned to head CRB. Without a fulltime staffer, things started to fall by the wayside, such as the review board's annual reports, which haven't been filed since 2009.

After CRB data on police complaints requested by CityBeat started to contradict itself, Scarborough admitted that record keeping has been less than satisfactory.

"We are realizing that consistency and accuracy in the database and reports, and oversight of the interns who work with it, needs significant improvement," she said in an email.  

Those improvements could be on the way. The city is poised to announce a new fulltime CRB executive director. And, in this year's budget, CRB, under the Neighborhood Services Department, received $244,403. That's a dramatic increase over recent years, which saw budget allocations hovering between roughly $105,000 and $150,000.

However, until significant changes are made, citizens such as Sightler will have to grit their teeth and work within the current system. While the results of Internal Affairs investigations are not available to the public, complainants do receive a letter in the mail stating the outcome of their case. Still, it's unclear if an allegation of discrimination will even be included for review when Sightler's case comes before the CRB. 

Since 2009, the board's reviewed only 33 allegations of discrimination, according to CRB data. In that time, no allegation has been sustained, resulting in discipline of an officer.


Write to joshuas@sdcitybeat.com or follow him on twitter at @jemersmith.

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